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This paper examines a form of common law intellectual property right, the so-called right of publicity. It argues that a right of this kind, unfettered by theoretical limits, represents a serious threat to the public domain. In the past, scholars have argued that new common law rights of this kind were acceptable as long as they abided by a set of limiting principles that could be derived from the theory of copyright and patent law. This paper takes the position that "limiting principles" of this sort have lost their force as the legal culture comes to rely more and more on a privatization model for the management of intellectual as well as tangible resources. This change in philosophy, understandably, reduces the useful role that intellectual property theory can play in protecting a viable public domain, but it throws into relief a second source of limits that is all-too-frequently missing from the dialogue about developing IP rights: the first amendment. The first amendment cannot be understood, in light of existing case law, to bar all privatization of information, but it does severely limit the possibilities. Trademarks and trade secrets are examples of rights that pass muster, at least within reasonable bounds. But none of the existing rationales seems capacious enough to include any but the most unusual publicity claim, particularly where the alleged violation is attaching an image or a name or other identifying characteristics of a well-known person to an article of clothing, or a coffee mug, or a poster, or a commemorative button ? all areas traditionally claimed as the exclusive preserve of the owner of the publicity right in question. The paper uses a current California case, Comedy III Productions, Inc. v. Gary Saderup, Inc., to illustrate why a property right cannot extend to images on a T-shirt.

Fitting Publicity Rights into Intellectual Property and Free Speech Theory: Sam, You Made the Pants Too Long!